Citation Nr: 0734057
Decision Date: 10/30/07 Archive Date: 11/07/07
DOCKET NO. 05-40 710 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to an increased (compensable) rating for
defective hearing, right ear.
2. Entitlement to an increased (compensable) rating for acne
vulgaris, residual scars.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
David S. Nelson, Counsel
INTRODUCTION
The veteran served on active duty from March 1957 to February
1961.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a May 2004 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri, which denied compensable ratings for the
disabilities on appeal.
The May 2004 rating decision also granted service connection
for tinnitus and assigned a 10 percent disability rating, and
also denied service connection for left ear hearing loss.
The veteran has not expressed disagreement with those issues.
FINDINGS OF FACT
1. The veteran has right ear hearing loss manifested by no
greater than level VII hearing acuity in the right ear.
2. The veteran's service-connected acne vulgaris is
manifested by remote superficial scarring of the face without
one characteristic of disfigurement, and no active flare-ups.
CONCLUSIONS OF LAW
1. The criteria for a compensable evaluation for right ear
hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100
(2007).
2. The criteria for a compensable evaluation for acne
vulgaris, residual scars, have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.7,
4.118, Diagnostic Codes 7800-6 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), in part,
describes VA's duties to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a). The VCAA applies in the instant
case.
Duty to Notify
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
By correspondence dated in February 2004, the veteran was
informed of the evidence and information necessary to
substantiate the claims, the information required to enable
VA to obtain evidence in support of the claims, the
assistance that VA would provide to obtain evidence and
information in support of the claims, and the evidence that
he should submit if he did not desire VA to obtain such
evidence on his behalf. The VCAA letters informed the
veteran that he should submit any medical evidence pertinent
to his claims. VCAA notice was provided to the veteran prior
to the initial adjudication. Pelegrini.
As increased ratings for the disabilities on appeal are
denied, the lack of notice regarding effective dates of
awards is not relevant in this case. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
Duty to Assist
The veteran's service medical records are associated with the
claims file, as are VA treatment records. The veteran has
undergone examinations that have addressed the matters
presented by this appeal. The veteran has not identified any
pertinent, obtainable evidence that remains outstanding. The
Board has also perused the medical records for references to
treatment reports not of record, but has found nothing to
suggest that there is any outstanding evidence with respect
to the claims.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the veteran in developing the facts
pertinent to his claims. Essentially, all available evidence
that could substantiate the claims has been obtained.
Accordingly, the Board will address the merits of each claim.
Legal Criteria
Disability evaluations are determined by comparing a
veteran's present symptoms with criteria set forth in the
VA's Schedule for Rating Disabilities (Rating Schedule),
which is based on average impairment in earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. Where entitlement to
compensation has already been established and an increase in
the disability rating is at issue, present level of
disability is of primary concern. Francisco v. Brown, 7 Vet.
App. 55 (1994).
When a question arises as to which of two ratings applies
under a particular code, the higher rating is assigned if the
disability more closely approximates the criteria for the
higher rating. 38 C.F.R. § 4.7. After careful consideration
of the evidence, any reasonable doubt remaining is resolved
in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§
3.102, 4.3.
Analysis
The Board has reviewed all of the evidence in the veteran's
claims file, with an emphasis on the medical evidence for the
applicable rating period on appeal. Although the Board has
an obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence of record. Indeed, the Federal Circuit
has held that the Board must review the entire record, but
does not have to discuss each piece of evidence. Gonzales v.
West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore,
the Board will summarize the relevant evidence where
appropriate, and the Board's analysis below will focus
specifically on what the evidence shows, or fails to show, as
to each claim.
The veteran's claim for an increased rating for the
disabilities on appeal was received in November 2003.
I. Right ear hearing loss
Service connection was granted for defective hearing by a
rating decision in August 1961, and a noncompensable
evaluation was assigned and has remained in effect to the
present time. Service connection for left ear hearing loss
is not in effect.
The severity of a hearing loss disability is determined by
applying the criteria set forth at 38 C.F.R. § 4.85. Under
these criteria, evaluations of hearing loss range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average hearing
threshold level as measured by pure tone audiometry tests in
the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per
second.
To evaluate the degree of disability from defective hearing,
the rating schedule establishes eleven auditory acuity levels
from level I for essentially normal acuity through level XI
for profound deafness. 38 C.F.R. § 4.85. To evaluate an
individual's level of disability, Table VI is used to assign
a Roman numeral designation for hearing impairment based on a
combination of the percent of speech discrimination and the
pure tone threshold average. 38 C.F.R. § 4.85(b). Table VII
is used to determine the percentage evaluation by combining
the Roman numeral designations for hearing impairment for
each ear. 38 C.F.R. § 4.85(e). The evaluations derived from
the Schedule are intended to make proper allowance for
improvement by hearing aids. If impaired hearing is service-
connected in only one ear, the nonservice-connected ear will
be assigned a Roman numeral designation for hearing
impairment of Level I. 38 C.F.R. § 4.85.
If puretone thresholds in the specified frequencies of 1000,
2000, 3000, and 4000 Hertz are 55 decibels or more, an
evaluation can be based either on Table VI or Table VIa,
whichever results in a higher evaluation. 38 C.F.R. §
4.86(a).
When the puretone threshold is 30 decibels or less at 1000
Hertz and 70 decibels or more at 2000 Hertz, the Roman
numeral designation for hearing impairment will be chosen
from either Table VI or Table VIa, whichever results in the
higher numeral, and that numeral will then be elevated to the
next higher Roman numeral. 38 C.F.R. § 4.86(b).
In February 2004 the veteran underwent a VA audiological
examination. Pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
100
90
60
85
90
LEFT
20
15
25
45
55
The diagnosis was a severe to profound mixed hearing loss in
the right ear and a moderately severe high frequency
sensorineural loss in the left ear. VA audiology examination
findings in February 2004 revealed that the average pure tone
threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 81
decibels in the right ear, with speech recognition ability of
94 percent in the right ear. The audiological findings
correspond to a level II hearing in the right ear. 38 C.F.R.
§ 4.85, Table VI. Under Table VII, a designation of level II
hearing in the right ear and level I hearing in the left ear
yields a noncompensable evaluation. 38 C.F.R. § 4.85,
Diagnostic Code 6100.
In August 2005 the veteran underwent another VA audiological
examination. Pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
100
95
60
85
90
LEFT
25
20
30
50
55
The diagnosis was a reverse slope moderately severe to
profound mixed hearing loss in the right ear and a normal to
moderately severe sensorineural loss in the left ear. VA
audiology examination findings in August 2005 revealed that
the average pure tone threshold at 1,000, 2,000, 3,000, and
4,000 Hertz was 83 decibels in the right ear, with speech
recognition ability of 90 percent in the right ear. The
audiological findings correspond to a level IV hearing in the
right ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, a
designation of level IV hearing in the right ear and level I
hearing in the left ear yields a noncompensable evaluation.
38 C.F.R. § 4.85, Diagnostic Code 6100.
Consideration has also been given to section 4.86 for
exceptional patterns of hearing impairment, as pure tone
threshold levels were 55 dB or higher at each of the four
frequencies, i.e., at 1000, 2000, 3000 and 4000 hertz in
February 2004 and August 2005. The puretone threshold
average of 81 decibels in February 2004, and 83 decibels in
August 2005, each correspond to a level VII hearing in the
right ear under 38 C.F.R. § 4.85, Table VIa. Under Table
VII, a designation of level VII hearing in the right ear and
level I hearing in the left ear still yields a noncompensable
evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100.
The Board in no way discounts the difficulties that the
veteran experiences as a result of his hearing loss.
However, the assignment of disability ratings for hearing
impairment is derived by a mechanical application of the
rating schedule to the numeric designation assigned after
audiometry results are obtained. Hence, the Board has no
discretion in this matter and must predicate its
determination on the basis of the results of the audiology
studies of record. Lendenmann v. Principi, 3 Vet. App. 345
(1992). In other words, the Board is bound by law to apply
VA's rating schedule based on the veteran's audiometry
results. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
In short, a compensable evaluation for right ear hearing loss
is not warranted.
II. Acne
Service connection was granted for acne vulgaris by a rating
decision in August 1961, and a 10 percent evaluation was
assigned. A March 1966 rating decision assigned a
noncompensable rating that has remained in effect since that
time.
Diagnostic Code 7828, pertaining to acne, provides that deep
acne (deep inflamed nodules and pus-filled cysts) affecting
less than 40 percent of the face and neck or deep acne other
than on the face and neck warrants an evaluation of 10
percent. An evaluation of 30 percent requires deep acne
(deep inflamed nodules and pus-filled cysts) affecting 40
percent or more of the face and neck. Superficial acne
(comedones, papules, pustules and superficial cysts) of any
extent, warrant a noncompensable rating. Diagnostic Code
7828 also provides that acne may be rated under Diagnostic
Codes 7800-7805, depending on the predominant disability. As
deep acne has not been shown, the Board will consider other
diagnostic codes.
Under Diagnostic Code 7800, disfigurement of the head, face,
or neck with one characteristic of disfigurement warrants a
10 percent evaluation. Disfigurement of the head, face, or
neck with visible or palpable tissue loss and either gross
distortion or asymmetry of one feature or paired set of
features (nose, chin, forehead, eyes (including eyelids),
ears (auricles), cheeks, lips), or; with two or three
characteristics of disfigurement, warrants a 30 percent
evaluation.
The eight characteristics of disfigurement are: scar five or
more inches (13 or more centimeters) in length; scar at least
one-quarter inch (0.6 centimeters) wide at widest part;
surface contour of scar elevated or depressed on palpation;
scar adherent to underlying tissue; skin hypo-or hyper-
pigmented in an area exceeding six square inches (39 square
centimeters); skin texture abnormal (irregular, atrophic,
shiny, scaly, etc.) in an area exceeding six square inches
(39 square centimeters); underlying soft tissue missing in an
area exceeding six square inches (39 square centimeters); and
skin indurated and inflexible in an area exceeding six square
inches (39 square centimeters). Id. at Note (1).
Scars, other than of the head, face or neck, that are deep or
that cause limited motion, are rated from 10 percent to 40
percent, depending on the size of the area affected.
Diagnostic Code 7801.
Scars, other than of the head, face or neck, that are
superficial, and that do not cause limited motion, which
affect an area of 144 square inches (929 square centimeters)
or greater, warrant a 10 percent rating. Diagnostic Code
7802.
Unstable superficial scars will be rated as 10 percent
disabling under Diagnostic Code 7803. Note (1) indicates
that an unstable scar is one where, for any reason, there is
frequent loss of covering of skin over the scar. Note (2): A
superficial scar is one not associated with underlying soft
tissue damage. Under Diagnostic Code 7804, superficial scars
which are painful on examination will be rated as 10 percent
disabling. Under Diagnostic Code 7805, scars may also be
rated on the basis of any related limitation of function of
the body part they affect.
Under Diagnostic Code 7806 pertaining to dermatitis or
eczema, where less than 5 percent of the entire body or
exposed body areas are affected, and no more than topical
therapy is required during the past 12-month period, a 0
percent (i.e., noncompensable) rating is assigned. In order
for a 10 percent rating to be assigned, the evidence must
show that at least 5 percent, but less than 20 percent, of
the entire body or the exposed areas are affected, or it must
show that intermittent systemic therapy such as
corticosteroids or other immunosuppressive drugs are required
for a total duration of less than six weeks during the past
12-month period. Where 20 to 40 percent of the entire body
or exposed areas are affected, or systemic therapy such as
corticosteroids or other immunosuppressive drugs are required
for a total duration of six weeks or more, but not
constantly, during the past 12-month period, a 30 percent
rating is assigned. Where more than 40 percent of the entire
body or exposed areas are affected or constant or near-
constant systemic therapy such as corticosteroids or other
immunosuppressive drugs are required during the past 12-month
period, a 60 percent rating is warranted.
At a March 2004 VA scars examination, the veteran complained
of acne on his face which he described as intermittent with
periodic flare-ups, although quiescent recently. He
indicated that he was not currently receiving treatment for
his skin disability. Physical examination revealed a few
erythematous papules and old acneiform scarring of the face,
with an exposed area of 20 percent, and a 3 percent total
body surface involvement. The assessment included acne
vulgaris-inactive.
At a July 2005 VA scars examination, the veteran complained
of residual scars from acne vulgaris. He indicated that he
was not currently using any medications to treat his scars.
He also noted he no longer had flare-ups since his retirement
as a meat cutter. Physical examination revealed a depression
of 1 (millimeter) mm in the central right cheek area, which
was approximately 6 mm in length and 1.5 mm in width at its
widest. It was slightly shiny and depigmented. The area was
non-tender, non-fluctuant, and there was no keloid formation
or edema. It was not adherent. The left mid cheek area was
represented by several pitting lesions of 0.5 mm in depth,
and these were nonconfluent and nonadherent. They were
slightly erythematous. There was no tenderness, keloid
formation, or edema, and none of the areas had any evidence
of clinical instability; they were remote in appearance.
After reviewing a frontal photograph, the examiner stated
that a wrinkle line on the face could represent confluent
pitting measuring approximately 1.75 inches in length and 2.5
mm at its widest. The impression was facial acne vulgaris,
remote, with scarring. Photographs of the affected areas
accompanied the examination report.
The veteran's acne vulgaris residual scars affect the face,
but are not shown to result in at least one characteristic of
disfigurement to warrant a compensable evaluation under
Diagnostic Code 7800. The Board has considered the potential
application of other diagnostic codes pertaining to scars.
The veteran's acne vulgaris residual scars are also not shown
to be unstable or tender and painful on objective
demonstration to warrant a compensable evaluation under
Diagnostic Codes 7803 and 7804. The veteran's scars are not
shown to be poorly nourished with repeated ulceration, are
not shown to result in limitation of function; are not shown
to be deep, cause limited motion; or exceed 144 square
inches; and are not shown to be unstable to warrant a
compensable evaluation under Diagnostic Codes 7801-7805,
7828.
The Board observes that the March 2004 VA examination
indicated that the veteran's acne vulgaris residual scars
manifested 20 percent of the face, the exposed area affected,
and as such, only 3 percent of total body surface
involvement. However, he has not been shown to have active
skin disease, as contemplated under Diagnostic Code 7806, as
his scars are noted to be remote, and he has reported no
flare-ups since his retirement as a meat cutter. Moreover,
he does not require topical therapy. As such, a compensable
rating is not warranted under Diagnostic Code 7806.
Conclusion
In reviewing the foregoing, the Board has been cognizant of
the "benefit of the doubt" rule, but there is not such an
approximate balance of the positive evidence and the negative
evidence to permit more favorable determinations. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The Board has considered assignment of an extra-schedular
evaluation under 38 C.F.R. § 3.321(b)(1). The record does
not show that any of the veteran's disabilities on appeal
have required frequent hospitalization, or that
manifestations of the disability exceed those contemplated by
the schedular criteria. There is no suggestion in the record
that any of the disabilities, by itself, has resulted in
marked interference with employment. Therefore, assignment
of an extra-schedular evaluation in this case is not in
order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v.
Brown, 9 Vet. App. 337 (1996).
ORDER
An increased (compensable) rating for defective hearing,
right ear is denied.
An increased (compensable) rating for acne vulgaris, residual
scars, is denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs